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Working during FMLA leave can violate statute

Why it matters: Where are the boundaries for contact with an employee on leave pursuant to the Family and Medical Leave Act (FMLA)? Acknowledging that no bright-line rule exists regarding employee contact during FMLA leave, a federal court judge in Texas ruled that an employee who alleged she was required to work while on leave sufficiently alleged a violation of the statute. The employee claimed that during her leave, her supervisor required her to perform 20 to 40 hours of work. When she returned to work, she resigned and filed a suit alleging FMLA interference, among other claims. Denying the employer’s motion for summary judgment, the court attempted to draw a line. “[R]easonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference,” the court wrote. Employers should use care when contacting employees on FMLA leave.

A manager in the Ethics & Compliance Department at Genon Energy Systems, Joan Smith-Schrenk was charged with investigating, monitoring, and reporting potential regulatory or ethical violations. The department was busy and Smith-Schrenk worked 50 to 60 hours per week.

Although Smith-Schrenk’s work performance was generally satisfactory, her supervisor expressed concern regarding her communication skills. During one review, she provided the employee with a development plan.

Smith-Schrenk began missing work in order to take care of her mother as well as deal with her own health issues. A cyst on her neck began enlarging and an inconclusive biopsy led her to schedule surgery. Her supervisor recommended the surgeon for the procedure and the two often discussed Smith-Schrenk’s mother’s medical issues.

According to Smith-Schrenk, however, her supervisor was “immediately hostile” when she requested intermittent FMLA leave to care for her mother and increased her workload. Although all of the employee’s requests were granted, her absences caused disruption in the department. Her supervisor also noted that her communication problems were not improving and drafted a coaching plan.

Before she could present the plan, however, Smith-Schrenk took full-time FMLA leave. During her leave, she said her supervisor continued to call and e-mail her, requiring her to perform work assignments, including updating compliance cases, revising a safety review project, and dropping off files at the office – a total of 20 to 40 hours.

When Smith-Schrenk returned to work, she heard that a position similar to hers had been posted for employment. She was also presented with the previously prepared coaching plan. Citing the hostile work environment, Smith-Schrenk resigned and filed a lawsuit alleging violations of the FMLA as well as the Americans with Disabilities Act (ADA).

Reviewing the facts on the employer’s motion for summary judgment, the court said the plaintiff had not “set forth the type of repeated or extreme conduct that would constitute a hostile work environment.” For one thing, the busy department had legitimate reasons for posting a new position given the undisputed heavy workload. Even Smith-Schrenk’s subjective beliefs about her supervisor’s actions were outweighed by the facts that all her requests for leave were granted and the supervisor provided a referral for her surgeon.

The plaintiff also failed to offer sufficient evidence of a constructive discharge, U.S. District Court Judge Gray H. Miller wrote. The coaching plan was drafted prior to her FMLA leave and the job posting was based on the department’s needs.

“A reasonable employee would not have felt compelled to resign amidst these conditions,” the court said, and “receiving a performance plan upon her return does not amount to harassing conduct.”

Smith-Schrenk’s FMLA interference claim, however, survived. Although Genon argued that any work performed by the plaintiff was de minimis and done voluntarily, the court said that “asking or requiring an employee to work while on leave can cross the line into interference.”

Reviewing case law on the issue, the court found the general consensus to be that “reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.”

For example, courts have found that taking occasional calls about a job while on leave is a “professional courtesy” that does not interfere with FMLA rights; nor does contacting an employee on leave about issues like her decision to accept another position within the company, the execution of documents related to the decision, and ongoing salary negotiations. On the other end of the spectrum, mandating that the plaintiff respond to regular phone calls may constitute FMLA interference, as could checking in with the plaintiff on the sales leads he was expected to generate during his leave.

“By requesting an employee work during FMLA leave, an employer not only discourages the employee from using such leave, but precludes her from using such leave during that period of time,” Judge Miller said. “In sum, the employer has failed to ‘respect’ the employee’s FMLA ‘entitlements.’ ”

While Genon disputed that the plaintiff was asked to work or deliver files to the office, “this only creates a genuine issue of material fact precluding summary judgment on plaintiff’s FMLA interference claim,” the court said.

Therefore, the court dismissed the plaintiff’s suit except for the FMLA interference claim.